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W WASHINGTON UPDATE Friday, September 11, 2015 Western Reserve AAHAM Fall Institute
What’s Been Happening 1)TCPA UPDATE 2)AFFORDABLE CARE ACT 3)PRESIDENTIAL POLITICS
TELEPHONE CONUSMER PROTECTION ACT (TCPA) (ANTI-BUSINESS/ANTI-CONSUMER ACT)
1) The TCPA was signed into law in 1991. Congress designed TCPA to protect consumers from receiving unsolicited telemarketing calls. 2) The TCPA restricts the use of “automatic telephone dialing systems, ” broadly limited the use of pre-recorded voice messages, and prohibited outreach to mobile phones without “prior express consent” from the call recipient.
Problem for us is the FCC has never defined PRIOR EXPRESS CONSENT, which has been a trial lawyers dream.
3) The TCPA was enacted in an era before most Americans had mobile phones. As such, the TCPA is outdated and has now exceeded its original goals of preventing telemarketing calls to now preventing wanted calls. 4) TCPA restricts Americans from receiving healthcare appointment reminders, follow up treatment information, and the like. 5) Further, it prevents them from receiving these communications on the devices they prefer – their mobile phones. 6) TCPA isn’t keeping up with the speed at which technology is driving our economy. 7) Almost 45% of households today do not have landline phones - This means 1 in 5 households today are wireless only. 8) Young congressional staffers never had a landline. 9) The point above is important because I have been in at least 2 meetings with young congressional staffers who said flat out we shouldn’t care if people pay their medical bills and companies should be fined for trying to get them to do so.
AAHAM has been a leading voice over the past 3 -years seeking significant changes to the TCPA. • Such a simple common-sense issue packed with so much political punch. • Has not been an easy fight as many of you can attest. • We have made significant progress. • December 2014 AAHAM files a petition with the FCC seeking declaratory relief on two issues: 1) Clarify what Prior Express Consent means - Specifically, we wanted an exemption for calls placed by or on behalf of healthcare providers - For purposes of the Petition, “healthcare provider” includes hospitals, emergency care centers, medical physician or service offices, poison control centers, and other healthcare professionals; and 3) AAHAM asked the FCC to exempt from the TCPA’s “prior express consent” requirement certain non-telemarketing, healthcare calls that are “not charged to the called party. ”
AAHAM’s healthcare provider members (or entities acting on their behalf) may contact patients by telephone regarding matters including, but not limited to: • • • Appointment and exam confirmations and reminders; Wellness checkups; Hospital pre-registration instructions; Pre-operative instructions; Lab results; Post-discharge follow-up intended to prevent readmission; Home healthcare instructions; Available payment options; Account reminders and payment notifications; Insurance coverage outreach and eligibility (e. g. , to notify a patient that insurance coverage or payment is available for a service that has been provided); Social Security disability eligibility; and “Health care messages” as defined by HIPAA. For purposes of our Petition, these calls were referred to collectively as “healthcare calls. ” • We met several times with the staff at the FCC and had very good dialogue with them. At the end of the day this issue became political with consumer groups and several members of Congress weighing in opposing all Petitions, regardless of what they were asking for.
We also argued in our follow-up comments to the FCC after our petition had been filed that AAHAM’s petition should be granted on its merits and based on the facts that the Congress and White House, through passage of the Affordable Care Act, place an unfunded mandate on providers. • ACA requires hospitals and outpatient clinics to perform post-discharge follow-up with patients to reduce the rate of readmission, a big contributor to the cost of healthcare. • We know the reminders, surveys, and education that have proven to lower readmission rates, can be successfully and cost effectively conducted by phone. • However, under the TCPA, these calls are high-risk if the patient’s primary contact number is a mobile number and the patient didn’t expressly provide the mobile phone number for that purpose.
We also argued in our follow-up comments to the FCC after our petition had been filed that AAHAM’s petition should be granted on its merits and based on the facts that the White House, through implementation of IRS Rules around 501(r), place an additional unfunded mandate on providers. 501(r): • Requires hospitals to call patients and verbally let them know they may be eligible for financial assistance. • Again, this is a process that could be more effectively and efficiently done through the use of technology, but made more costly by the inability to utilize technology.
• There were 22 petitions before the FCC asking for relief from the TCPA. • AAHAM recently submitted congressional testimony to the House Energy & Commerce Committee, which held a hearing on the FCC, and the issue of the TCPA was addressed. • Members of Congress during this hearing not all that thrilled to learn that FCC rules that came out earlier this year would prohibit them from using autodialers to reach their constituents without their prior express consent. • This means the tele town halls that they use today would be in violation of these rules. • We have members of Congress interested in introducing legislation to fix the TCPA, but it is going to require true bi-partisan support and we are not there yet. • We are moving the needle, but not to where we need to be just yet. • We have talked with two offices recently that may be interested in starting this process, but until we get that commitment, that is all I will say for now.
• FCC’s rules and most recent ruling on the 22 Petitions leaves the TCPA still unclear and vague that now every smartphone, tablet, VOIP phone, calling app, texting app – pretty much any calling device or softwareenabled feature that’s not a rotary-dial phone – is an automatic telephone dialing system. • FCC really strengthened their position with current TCPA rules. • Of the 22 petitions, AAHAM is the one that did get some of the relief it had sought through its petition.
What AAHAM Got • The FCC granted AAHAM’s petition to exempt calls for which there is exigency and that have a healthcare purpose, specifically: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, postdischarge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions. • Calls that include telemarketing, solicitation, or advertising content, or which include accounting, billing, debt collection, or other financial content are not exempt. • HIPAA privacy rules shall control the content of the informational message where applicable, such as where the message attempts to relate information of a sensitive or personal nature. • The exemption applies to robocalls and texts to wireless numbers only if they are not charged to the recipient, including not being counted against any plan limits that apply to the recipient (e. g. , number of voice minutes, number of text messages) and the healthcare providers complies with the enumerated conditions we adopt today.
What AAHAM Got • Additional conditions: – Voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient; – Voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures would need to be made at the beginning of the call); – Voice calls and text messages are strictly limited to the purposes permitted as discussed above; must not include any telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules; – Voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
What AAHAM Got • Additional conditions: – A healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider; – A healthcare provider must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls, text messages must inform recipients of the ability to opt out by replying “STOP, ” which will be the exclusive means by which consumers may opt out of such messages; and, – A healthcare provider must honor the opt-out requests immediately.
What AAHAM Got • We did not get everything. • Specifically, we did not get the third party exemptions. • The effort is not over – AAHAM still seeking additional relief. • American Bankers Association has filed a petition for reconsideration asking the FCC to remove the first condition, which requires that the exempt calls be placed only to numbers that have been provided by the consumer – that condition prevents financial institutions from relying on numbers that may have been obtained from third -party sources to provide fraud, breach, identity theft, and money transfer notifications. – Does not directly impact AAHAM’s petition, but we are submitting comments urging the FCC NOT to vacate the entire ruling. • AAHAM along with a host of others filed an appeal to the FCC’s ruling in DC Circuit Court. – ACA International has also filed a lawsuit on the issue of reassigned numbers. • Efforts continue and will continue!
AFFORDABLE CARE ACT
• Problems still exist with the ACA – Cadillac plans continues to be an issue and expect fight over those prior to implementation. » Repeal will cost $87 billion over 10 -years » Representative Frank Guinta (R-NH) and Joe Courtney (D-CT) have legislations H. R. 2050, which would repeal tax set to take effect in 2018. – High deductible plans and impacts on families – Families USA study talks about positives of ACA, but also is critical of the high deductible plans. – Just because you have insurance doesn’t mean you can afford to use it. • King v. Burwell was supposed to put this issue to rest once and for all – This was a huge victory for the President. – Gave the President confidence to move on other issues like EPA rules and Iran, overtime rules, employee v. independent contractor status; – I believe most Republicans are privately pleased with SCOTUS decision. – Congressional staff were trying to put together a package to rollout once the SCOTUS ruled in their favor. – Plan would not have been popular and taken time to implement and would not have appeased the hard core conservatives. – SCOTUS ruling for the President gave Republican’s an out and issue to continue to campaign against (in certain districts).
• Republicans still talking repeal and replace (fewer on this bandwagon today, but there are still some like Sen. Ted Cruz continuing the fight). • Senate Majority Leader Mitch Mc. Connell trying to find a way to give conservatives in the Senate another vote on repealing the ACA. • Mc. Connell said last week that he is seriously looking to tie ACA repeal to a budget maneuver called Budget Reconciliation. This does not need the typical 60 votes to pass. • If they do this it will be controversial, but will help them heading into the 2016 Senate elections and Presidential race, especially in key states and with hard core conservatives. • Challenge for Republicans is what do you put in its place. They do not have consensus on that.
• Other problem Republicans have is the individual mandate. • Early on this played into Republicans hands, but now as the penalties for not enrolling reach $695 (or 2. 5% of income, which ever is greater) in 2016, people may just enroll. • In 2015 11. 7 million people enrolled through the marketplaces, although only 10. 2 million actually paid their premiums. • With SCOTUS ruling on the subsidy issue and more people signing up, this may just save the ACA. • Don’t get me wrong, there will still be continued efforts to make changes, but it is going be very difficult, even with a Republican President. • We need to watch the Cadillac plan fight coming as well as continue to watch the impacts high deductible plans have on families.
Y WELCOME TO THE CIRCUS I can’t finish today without talking about this circus
OOPS… I MEAN THE 2016 RACE FOR THE WHITE HOUSE
HILLARY CLINTON V. BERNIE SANDERS DON’T FORGET ABOUT ME (Smokin Joe Biden)
HILLARY CLINTON PROBLEMS • • • STILL EXPECTED TO BE THE NOMINEE 90’S BAGGAGE BENGHAZI E-MAILS, E-MAILS CLINTON FOUNDATION DONORS NO DETAILS TO WHERE SHE STANDS POOR CAMPAIGN ROLLOUT DEMOCRATS NOT SOLD ON HER TRUSTWORTHYNESS QUESTIONS POOR POLLING NUMBERS CONCERN DEMOCRATS – Trails Republicans (Bush, Rubio, Walker) in key states: VA, CO, IA – Leads Sen. Sanders by just 6% in NH – huge swing from a month ago. • SEN. ELIZABETH WARREN (D-MA) CONTINUES TO BE THORN IN CLINTON SIDE – HAS MADE OVERATURES THAT SHE COULD SEE HERSELF ENDORSING SEN. SNADERS – THIS WOULD BE HUGE BLOW
• Sanders is the Donald Trump of the Democratic Party. • Sanders free to speak his mind. • Very critical of the Clinton’s. • Drawing large crowds • Some of these crowds are in states that won’t have a primary until late in the cycle, but good momentum for Sanders. • Won’t catch her in the money chase, but able to raise money to keep him in the race. • VP Biden now seriously considering jumping into the race because of unpopularity of Clinton. • Would be huge uphill battle for him.
REPUBLICAN SIDE OF THE AISLE Donald Trump running away with the polls (Even after poor debate performance he still leads in the polls)
REPUBLICAN SIDE OF THE AISLE – Before you get to excited, polls this early mean nothing – Deez Nuts – 15 -year old kid from IA is polling at 9% or higher in states like NC, IA and MN. – Look at what happened to former Congresswoman Michelle Bachman
Today’s candidates underestimated the anger in the electorate and Trump has capitalized
• People love his “straight talk. ” • He knows how to play the media. • He has tapped into voter anger. • Has money to keep this train going. • His past record has not mattered: • • Pro Clinton; Pro Amnesty; Pro single payer healthcare system; Pro-choice. • None of this has mattered – 1 st debate proved that. • Any other candidate would have been run out of town, but not Trump. People still defending him.
MY PREDICTIONS Bush – better step up his game or he will start falling. Has the money, but will that be enough. Rubio – looked good in first debate, but still unproven. Could be a VP contender. Political cardinal sin – threw football and hit a kid in the face. Walker – still undecided. Needs to be more dynamic and show a take charge attitude. Playing it safe will cause him to falter. Have to worry about him putting his foot in his mouth. Starting to fade. Cruz – popular, but battling Trump, Carson, Paul for same voters. Cruz could be biggest benefactor if Trump falters. Kasich – I’m biased as I serve on Governors steering committee. Had a great debate and numbers will climb. Likely to be either nominee or VP nominee. OH a must win state. Fiorina – Had a great first debate and will attract attention. Can she sustain it? Carson popular, but has not had to define any specific policies yet and not put through the ringer. It will happen. (Paul, Christie, Huckabee, Perry – will fade or run out of money)
TAKEAWAYS 1) AAHAM NOT FINISHED FIGHTING FOR TCPA REFORMS 2) HEALTHCARE STILL GOING TO BE FOCUS 3) 2016 RACE FOR THE WHITE WILL CONTINUE TO BE ENTERTAINING
Paul A. Miller (703) 383 -1330 – office (703) 930 -7790 – cell phone [email protected] com @mwcapitol – Twitter @mwceo – Twitter https: //www. facebook. com/Paul. Miller. MWCapitol